Principles

·  TORT — Trespass—Standing  to sue—Only by one in possession.

In a rain-cultivable scheme. where land must lie fallow every few years, a licencee to an over-used plot.who has been allotted another plot while the over-used plot lies fallow is not in physical possession of the over-used plot and therefore has no standing to bring an action Of trespass and mesne profit.

Judgment

* Court: MA. Abu Rannat, C.J. and M.A. Hassib, J.

 Advocates: Abdalla Abdel Hadi .... for defendant-respondent Ahmed Amin and

Omer El Nur Khamis …………………….. for pIainiff applicant

M.A. Abu Rannat, C.J., June 26, 1963:— The plaintiffs are the licencees of a rain cultivable scheme situate at Domat of Gedaref District known as Scheme No. 428. After they had cultivated this scheme for two years, they were told by the Agriculture Authorities that the land was over used and it must be left fallow for a number of years before they recultivate it, and they were allotted another land for cultivation. This arrangement is made by the Agriculture Department in Gedaref as the land loses its fertility after cultivation for a number of years.

In May, 1961, the second defendant applied to the Inspector of Agri culture to allot him a scheme, and the latter allotted him a scheme in the same area of Domat known as No.422, but through the mistake of one of the officials of the Ministry of Agriculture, scheme No. 428 was delivered to him. The second defendant then cultivated in scheme No. 428, not knowing that it was the scheme which had been allotted to plaintiffs.

The plaintiffs claimed £S. 2000 damages from the defendants o the ground that they trespassed on a scheme which was allotted to them.

The District Judge found that the second defendant cultivated scheme No. 428 by mistake, and considered that he trespass and was therefore liable to deliver all the dura crop which he obtained from the scheme. Consequently the District Judge issued a decree ordering the second defendant to vacate the scheme and deliver to the plaintiffs 2108 sacks of dura or pay its value. It has been found that the first defendant had nothing to do with this case.

On an application for revisionebv the second defendant, His Honour the Province Judge set aside the-District Judge’s decree on the ground that scheme No. 428 is Government property and that there was no trespass by the second defendant.

This application is by the plaintiffs against the above decision of His Honour the Province Judge.

Advocate Omer El Nur Khamis submits that the plaintiffs are still the tenants of the scheme as they have been paying rent to the Government. and as the wrong of trespass to land consists in the act of entering upon land in the possession of the plaintiffs, the defendants must be held to be liable to pay damages.

The most important point in this application is whether the plaintiffs are entitled to sue the defendants.. A trespass is actionable only at the suit of him who is in possession of the land. using the word possession in its strict sense and including a person entitled to immediate and exclusion  posession. Are the plaintiffs in this case entitled to immediate possession?

The Inspector of Agriculture states in his evidence that the plaintiffs can only return to the land after it acquires sufficient fertility and that this particular scheme can only acquire its fertility after 15 years. This means that the plaintiffs cannot without the permission of the Inspector of Agriculture, who stated that the land is in possession of the Government, return or cultivate the land in question. To suppose that the plaintiffs can leave the scheme uncultivated for 15 years and yet retain possession simply by prosing that they have been paying for the licence, which indicates an intention to return after the lapse of a long period would be to frustrate the spirit and policy of the agreement between these licencees and the Government. In my view the plaintiffs have failed to establish that they have a right to immediate possession as will suffice to maintain an action in tres pass. I should like to add that if the plaintiffs succecded in maintaining such an action, they would only be entitled in the circumstances of this case to nominal damages.

This application is therefore dismissed.

M.A.Hassib, J., June 26, 1963:— 1 agree. Trespass is actionable at the suit of the person in possession of land. Plaintiff in this case is a tenant, but he is not in possession. He cannot sue. Possession in this sense means physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another. In the case of cultivable land, possession is evidenced by any act of enjoyment. In the present case, though the land of scheme No. 428 Domat of Gedaref District is still enrolled in the name of the plaintiffs as tenants, they did not enter into it for enjoyment. They were given another scheme under No. 422 in place of scheme No. 428. TIterefore the intrusion by the second defendant into the land of scheme No. 428 was not unjustifiable. He entered as a tenant into the land, which is Government land and which is not in possession of the plaintiff.